A Warning Shot about Copyright Warnings

An important warning shot has been fired about overblown copyright warnings that literally threaten jail sentences and severe fines for activity that is very often fair use or fair dealing, or simply not covered by copyright law in the first place.

Much ado about the complaint to the FTC about frequently ridiculous copyright warnings on TV, in theatres, in books, on DVDs, etc.

A few comments.

The complaint is not from the usual copyleft wing. It is from a trade group that includes Microsoft and Google.

A coalition of American library associations called the Library Copyright Alliance have strongly supported the complaint. It would be really nice if Canadian libraries could more often take such strong, unified and useful positions on copyright matters.

Judge Posner raised the flag on this three years ago in a remarkable guest blog he did on Larry Lessig's site:

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright's breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher's (or movie studio's) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn't know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

...

What to do about such abuses of copyright? One possibility, which I raised hypothetically in my opinion in WIREdata, pp. 11-12, is to deem copyright overclaiming a form of copyright misuse, which could result in forfeiture of the copyright. For a fuller discussion, see the very interesting paper by Kathryn Judge...

As usual, Judge Posner in his scholarly capacity was way ahead of the curve.

BTW, the article he mentions by Kathryn Judge is “Rethinking Copyright Misuse” (2004), 57 Stan. L. Rev. 901. Ms. Judge clerked for both Justice Posner of the Seventh Circuit and Justice Breyer of the U. S. Supreme Court - which is extraordinary.

Her notable article was cited in last week's Supreme Court of Canada decision in Euro-Excellence v. Kraft.

HK